I’ll be taking a holiday break from blogging, so this will be the last post of 2011. A big thank you to all my readers for a great year.

Small Copyright Claims Request for Comment — “The U.S. Copyright Office is undertaking a study at the request of Congress to assess whether and, if so, how the current legal system hinders or prevents copyright owners from pursuing copyright infringement claims that have a relatively small economic value (‘small copyright claims’); and recommend potential changes in administrative, regulatory, and statutory authority to improve the adjudication of these small copyright claims.” Public comments are due January 16, 2012.

Robert Levine Tells the Rest of the Story — Bill Rosenblatt presents a thorough and compelling review of Free Ride. “Lobbying organizations’ modus operandi is to rally people and organizations around messages that elicit contributions. Messages like “keep the Internet free and open” and “fight censorship” resonate with the public, especially when they align with getting content for free. When a company like Google funds these organizations, the effect is to put a positive PR spin behind activities that benefit those companies — a spin that the likes of the RIAA and MPAA don’t enjoy (to put it mildly).”

Land of the “Free” — Ken Sanney asks, “Could the communal view of intellectual property advocated by such corporate giants as Google be pushing America from a heavily individualistic ownership culture to a more communal ‘Europeanized’ culture?”

35 Comments

If you look at the opposition to SOPA, it’s the IETF/Internet Society (ie. the people who design this thing called the Internet), major government players in cybersecurity like Sandia National Labs and DHS, as well as virtually all major technology companies.

Yet the entertainment industry seems to have the tenacity to claim all the technical arguments are bunk based on the testimony of one individual with a “engineering education” no one even ever heard of.

Anyhow, the technical stuff that is being objected to (by people who profit from the status-quo, btw) have been implemented for years now,.. and yet we’re only hearing “break the internet” when it involves people not having their easy access to free pron and music…

No, Paul Vixie is easily dismissed because he feels that filtering measures shouldn’t be used to protect intellectual property. That’s a policy argument, not a technical one:

“I’ve been asked by several people whether ISC’s Response Policy Zone technology (referenced above) can be used to implement government mandated DNS blocking, for example to protect Hollywood against intellectual property theft or to protect children against abuse by the distribution and viewing of Child Abuse Materials or to protect a society against content deemed dangerous by its government. Sadly my answer to this is a qualified “yes.” I say “qualified” because while I can agree that it’s worth perturbing the whole Internet ecosystem to wipe out a domain that’s being used for the distribution of Child Abuse Materials I simply cannot agree that this level of perturbation is warranted for the protection of intellectual property.”

Following his line of thought, I have a policy suggestion that Mr. Vixie’s entire income should be henceforth transferred to my account.

Seriously though, while I’m not a big fan of technical measures to curb piracy, something must be done. I don’t hear any sensible suggestions from the opponents (“sensible” meaning that it solves the problem through less objectionable means – leaving the problem unsolved isn’t an option).

Oh please. The movie and music industry have thrived in every way possible despite piracy.

The record high for the music industry was $15 billion in 1999. This year, they’ve made $7 billion with the advancements of Spotify, Soundcloud, Jamendo, and Youtube for music.

The movie industry made $10 billion in box office sales. Further, more movies have been released now than any other time in history. And the jobs issue? Laughable. The jobs in the movie industry have remained relatively stable. The movie theaters were the main ones to lose jobs. Further, if you really want to discuss “something has to be done”, why not look at the ridiculous pay of the CEOs of the industry? Phillippe Dauman makes $80 million a year in stock options while saying that Viacom is being decimated by piracy. The only CEO not making money is Sony, what with the PSN fiasco of the summer. Even then, he’s making $4 million a year.

Surely, if these businesses are unable to compete in any way, then there is no reason that the CEOs are making $30 million on average from the companies supporting SOPA/PIPA.

Best suggestion? Make the CEOs have a $1 million a year paycheck and invest more in legal solutions than the false premise of copyright enforcement. Have the Ultraviolet Disc go the way of the dodo, embrace Hulu with a decent licensing agreement and find ways to make movies available for $5 versus $20 per DVD. Allow Youtube to rent movies at $1.99 for however long people want it and stop focusing on this notion that some “foreign website” is the cause of their problems. Their licensing agreements are bad. Their notion of using Congress to bully legal platforms is horrid. There is not foreign website problem. There are issues with their service that they don’t want to fix. If game makers such as Gabe Newell have figured out how to make Russia their second best customer country (besides Germany) despite piracy, then anyone can make a business without worrying about a “rogue website.”

Wait, I am talking about Google, Microsoft, Facebook, Twitter, IETF and many many other organizations who’s whole businesses revolve around IP and copyright and that contribute more than an order of magnitude to the economy than the music and movie industry combined. Clearly they are all pirates in it for the free pr0n and Lady Gaga music.

James, pay attention. 1999 was the year of the CD, where the songs that people wanted came bundled with $20 CDs with very little extras. People have now moved to digital files where the more legal alternatives are making more money for artists. There are now more artists with more avenues to make money. From Spotify and Youtube, the future is digital sales not CD sales. The fact is, artists are making more money from these avenues while record labels are losing. The record labels have less control of who makes it big in the music industry. So Warner is losing, but artists are winning.

The industry is comparing itself to the days when it banked nearly $15 billion a year in revenue. Those were the days when music buyers had to pay $15 for a CD to acquire the one or two songs they wanted. Sales have decreased ever since online music sharing became widespread but also since iTunes gave consumers the ability to pick and choose which songs they wanted. In 2010, overall music sales were down to $7 billion.

So obviously, the industry had a lot more clout when people were locked to CDs for two or three songs they wanted. Now, they don’t have to do so. The profits of the Big Three reflect this choice. And now, you can’t deny that artists are making money through other endeavors such as Kickstarter or the same digital services that make a record deal less prevalent.

Maybe next time, you should read and study up on how artists are thriving before trying to cherry pick examples son.

Spotify is the worst thing since piracy.. You’re going to see a mass migration of indies and labels pulling their music from there. (actually close to 300 labels already have…)
Their pay is non-existant, and having your music there actually hurts iTunes/et tal, single sales.

I’m not going to go any further with you as i don’t have the time, and you’re so obviously misinformed it would take weeks just to undo half of the brain-washing you’ve recieved.

You obviously haven’t paid attention to what Spotify has done recently. Spotify has become a platform for music. You can make API for whatever point you want. The sky is the limit. Users are allowed to use them anyway they want.

And Spotify is the worst thing to ever happen to the industry? When this is the very same technology that has made the industry more money and *finally* demonstrated the power of P2P in this era of digital technology, all across Europe? And yet you try to suggest that I’m ignorant of history? I would love to hear how the new features are affecting iTunes sales. But it’s kind of telling that iTunes isn’t the *only* statistic for success.

Please James, do me a favor. Try to have your opinions based in facts. Yes, a lot of labels ignorantly took away their support of Spotify before it worked out this deal. Yes, they still have to work to make money in other avenues. But don’t try to bring about false tales of economic loss when it’s only based on anecdotal evidence.

Sure, if you’re a consumer, Spotify is the best thing since sliced-bread. Or if you happen to own an equity stake in the company, like the Big 3 labels… but if you’re an artist? It’s a sure-fire way to kill your revenue (unless you weren’t making revenue in the first place… in which case, you’re not ‘working’ in the industry..)

Nobody is forcing you to use Spotify. If the deal is so bad, pull your music off of the service. Otherwise, don’t complain. They owe you nothing.

As I said, there is too much music out there. Millions and millions of tracks.

If you look at the “demand quantity” for music, just listen to any pop radio station and witness how they play the same 10 songs over and over. And somehow you think this is a market that can sustain hundreds of thousands of musicians reliably? If you try to make a living in such a saturated market you are doing it at your own risk. Try working in a field that pays better, if you like writing music you can always do it a second job/hobby.

The nature of music consumption makes being a “professional” musician is not like making money but playing the lotto. Either you are hilariously rich (like Madonna, who can literally afford to “build” a full sized mansion in the middle of Manhattan), or hilariously poor (is an, part time McD employees fair better). The fast majority of musicians are poor. You can blame the economics of music for this (fixed production costs, variable income).

Movies have competed with games since the 1980s. All of my disposable income as a kid went to buying records and putting quarters in video games.

If piracy wasn’t hurting the music industry, then artists would be making more money off of record sales. Labels wouldn’t be laying off employees. Labels would have more money for studio budgets. Recording studios wouldn’t be laying off employees or closing. Artists would have more time to create at home and in the studio.

You’re nothing but a gigantic liar to say this hasn’t decimated the music industry, musicians, and music itself.

You know for an industry that sits way, way in the top of Maslow’s Hierarchy of Needs, the music industry and musicians really have some kind of crazy holier than thou attitude about what they do.

Quite frankly, there is already way too many musicians and music in existence. There doesn’t need to be any encouragement here.

The government should be focusing on stimulating industries that actually have critical shortages of manpower and actually help people live longer and better lives. Like doctors, nurses, and *gasp* computer scientists and engineers. Oh and even economists are more useful, Faza.

What point are you trying to make? I can stop listening to music. That’s the whole point. It’s not essential – it’s entertainment. Free feel to try to dispute that with some pseudo-religious boloney if you want, I don’t care.

And really, there is too much music already out there. iTunes has tens of millions of tracks, more than a person can listen to in multiple lifetimes. Even if you specialize in a specific genre, there is way too much music to listen to. You guys like to concentrate at “not enough buyers”, but the chief problem is there is “too many sellers”.

There are hundreds of thousands of Creative Commons tracks out there these days, again more than any single person can realistically listen to. You don’t have to pay for music at all, legally. So why does this industry need more money exactly?

Meanwhile, our STEM (Science, Technology, Engineering, Mathematics) industries in the US are having trouble finding qualified people to fill positions. They have to in-source (H1-B) and outsource talent.

The fact is we need LESS artists in this country and more engineers.

So why is Congress trying to pass legalization to bolster the artist at the expense of the engineer? You might go on and on about how SOPA won’t hurt tech, but tech disagrees.

Why exactly is this debate even happening? Science and Tech is the foundation for modern civilization. They should have all the power in government and something as pointless industries that contribute little of actual value.

I’ve had trouble understanding why entertainment has so much clout despite being a relatively minor part of the economy, and seemingly non-essential service.

But I think after looking at the past a bit, I can finally understand why. I learned a lot about how the Romans keeped their people sedated. Bread and circuses keep the people appeased.

I see what people can do on the Internet and I must conclude that the Internet is a bad thing for the status quo. In order to maintain control, you must control the flow of information. That’s why when the Arab countries started revolting the first thing the regimes did was cut off Internet.

But I guess the West is different right? Well no. People are people, governments are governments. Giving power over information flow on the Internet is just asking for abuse.

Movies have competed with games since the 1980s. All of my disposable income as a kid went to buying records and putting quarters in video games.

Kent, movies of the 80s and games of the 80s were two totally separate markets. The NES did not compete against the likes of the VCR, or cassette tape. It wasn’t until the 90s and the Super NES era that you had both on a par. Skipping two generations of game consoles (PS2 era) you did not have a lot of people playing console games on a level to make it a profession until this generation of gaming consoles. I won’t even get into PC gaming which has spawned a number of careers with Major League Gaming.

If piracy wasn’t hurting the music industry, then artists would be making more money off of record sales.

By now, you’re aware of RIAA Accounting. The artists make money through what I’ve mentioned earlier. A record deal could bankrupt smaller artists and no, piracy is not hurting artists all that much. If it were, Jamendo, Spotify, and Youtube would not be as successful as they are with free music.

Labels wouldn’t be laying off employees. Labels would have more money for studio budgets. Recording studios wouldn’t be laying off employees or closing.

Look at how much they pay their lobbyists. And their CEOs. Then look how they abuse their artists (hint: Universal vs 50Cent). The artists are doing fine. The labels are not. I wonder why?

Artists would have more time to create at home and in the studio.

And they do. Outside of the very bad business model of the record labels who have no clue how to use the internet and want to turn it into broadcast TV with SOPA.

“And they do. Outside of the very bad business model of the record labels who have no clue how to use the internet and want to turn it into broadcast TV with SOPA.”

You hit the nail on the head. You __MUST__ make a distinction between artists and recording companies. One produces content, the other distributes the content.

The Internet has changed the game and they don’t understand it. There is too much information out these days. Too much content. It’s information overload.

The value is not in providing content, but organization of the content so it becomes accessible and useful. That was key to Google’s success. Facebook is not much different in this regard.

You can turn anything into an algorithm. Live, the universe, everything: it’s all a series of steps.

Google’s search engine is based on algorithms, these algorithms executed on computers. Humans are largely not involved in the execution, only in the defining of the algorithm (software engineers).

A record company’s business is an algorithm, executed mostly by human computers (“people”). These people who work the algorithm include talent scouters, music execs, lawyers, retailers, etc. But fundamentally, it’s a process, is not so well defined the way most mathematics is but a process none the less. And the algorithm is executed by people. Regardless the record company machinery is fundamentally an algorithm.

But the thing is, the algorithms Google use and the record industry attempt to solve the EXACT SAME PROBLEM: making content available to the populace.

They are both in the same business in a way (although records are of course limited to music, Google deals with a much larger subset of content).

The record companies where in the USG (user generated content) business before Web 2.0 or even Web 1.0 was ever considered. USG in this case is “professional artists”, but it’s USG none-the-less.

The record industry algorithm is based on a very bureaucratic and labor-intensive processes (involve contracts, marketing, music execs to make decisions on what songs get promoted and what don’t, etc.). This all costs a lot of $$$ and tends to be hard to logically reason about.

Google and Facebook organize content based on artificial intelligence (neural networks, Hidden Markov Models, etc.) and with assistance from crowd sourcing. They “automate” the record companies manual process of discovering and promoting content. They can be more accurate because computers are fundamentally better at analysis at scale than humans.

This is key: the main difference between the “old media (RIAA, MPAA, etc.)” and the “new media (Google, Facebook, Twitter)” is not profiting from content. BOTH profit from content. The difference is in internal business processes they utilize to distribute and characterize the content.

One is based on industrial age tactics that involve computers only minimally, and mostly manual and expensive processes that are hard to tune and change. One was born of computer science and networking.

So basically, the record industry is failing because they have a crappy algorithm. Tech companies are of course taking their place as the “content kings”, because really software and computers making decisions at scale is the way forward _in all businesses_.

For example, I never really understood what a producer actually does from start to finish until my daughter began working for a highly successful, Tony-winning (5 times) producer of shows on Broadway. Armed with this newly found knowledge, I then asked questions of close friends who work in the music business with several of the very bands that have achieved astronomical success, some of which friends are longstanding members of these bands. I learned that the role of music labels is not in any meaningful regard different from those who work on Broadway. My daughter now works as in casting for movies, television, and print ads. Again, observing all of the roles served by people within those businesses it became clear that there was likewise no meaningful difference.

But I did not stop there. I have worked closely with all manner of companies from low to high tech, many of their products of which are household names, and discovered after dealing with the entertainment businesses that there is likewise little meaningful difference between the industries other than the “products” offered to the public,

Without endorsing SOPA, I do believe that it conceptually attempts to strike a balance between the respective interests of the associated industries. Life is a compromise, and I see nothing wrong with trying to arrive at a compromise that is fair for all.

Quite frankly, rather than all of the wailing I see coming from persons who are dead set against anything like SOPA, I wish they would take the time to examine such legislation in accordance with the basic principles of law associated with tort law as it has developed under common law. I believe that if they did so they would find that many, many of their “hot buttons” are not at all egregious overreaching as they would have others believe. The very same can be said of the constitutional issues that are being bandied about with such uninformed vigor.

Life is a compromise, and I see nothing wrong with trying to arrive at a compromise that is fair for all.

Sure there’s a compromise here. Look at all of the people that make money despite copyright law. Look at what people say are problems of the DMCA, PROIP, NET Act, and improper use and abuse of the takedown procedures. Then fix those by allowing fair use exceptions. Allow the public to see what they want and do not want and adjust accordingly. That’s the only compromise that has bearing: Copyright used by Congress to allow people to make their choices of what is allowed and what is not. People don’t want DRM. People don’t want to be locked into stationary platforms. Making these types of things illegal will never change inherent opinions of right or wrong about downloading movies or music.

I wish they would take the time to examine such legislation in accordance with the basic principles of law associated with tort law as it has developed under common law.

SOPA does not strike a balance. It does not create a better atmosphere. It allows record and movie companies to point a hand at websites they do not like and cause unnecessary burdens and litigation, destroying legal platforms of commerce and hampering the innovations for better products and tools for artists. This is the entire problem with SOPA/PIPA/OPEN. All of them look at piracy as so damaging when nothing could be further from the truth. The fact is, artists have thrived without copyright enforcement. Engineers are working to make more tools and platforms which help artists find audiences. The legal aspect of copyright law has not helped create one artist. The legal aspect, almost from the Sony Bono extension, has been about helping the middlemen, not artists. The rates are set by a board, which artists are not a part of. When people look at ASCAP, BMI, or SESAC, guess who it helps the most? The artists at the top at the expense of the up and coming artists. How many artists release their work on Deviantart, Imgur, or Twitterpics for free, and collect an audience over using the DMCA takedowns against others that copy?

The point here is simple. Enforcement has not done much, if anything to assist artists in any area of the entertainment field. Making foreign websites liable for copyright infringement will not cause piracy to go away. People will find ways to find movies and music they like. They’ll just do it through a decentralized manner that Congress can’t hope to figure out.

Perhaps the better notion is to understand what piracy actually is (underserved customers) and find ways to meet their demands by creating legal platforms of commerce. If others can have success despite piracy, then I’m sure it can be done by anyone. Why lobby Congress for bad laws when the rewards of making a better business has so many more benefits?

Rather than write a legal treatise, let me make one final comment. “Piracy” is commited by persons looking for “product”. “Pirates” are certain sites that enable “piracy”, both directly and indirectly (which is where longstanding principles of tort law come into play in better understanding issues involved with primary and secondary liability).

Conceptually, SOPA is directed to “pirates”, and not “piracy”, a distinction that is not well, if at all, understood by many of those who are opposed to any such laws. Moreover, SOPA is directed to those “pirates” who have hitherto secunded themselves in locations where they ply their illicit trade outside the traditional reach of US law.

The problem with SOPA is it tries to take a sledgehammer to a problem that requires surgical precision. You have the term “dedicated to copyright infringement”, at the same time, what kind of legal standard is that?

If a Web 2.0 site has legal stuff on it (almost every torrent site does), than is it dedicated to copyright infringement? Than by that standard, nothing would ever get taken down by SOPA. Hahaha, please.

By the same extension, sites like YouTube or Wikipedia have (had) plenty of examples of infringing content. There is no helping it. Even THIS site could have infringing content on it – how am I suppose to know you didn’t copy and paste someone’s rant or it is your own? 🙂 You can not simply “test” for copyright violation – so any site that is more than a static page is totally vulnerable to it.

Really, all major Web 2.0 sites have “unauthorized content” on them. It can’t be helped.

Although YouTube is “too big to fail” these days, I doubt it would exist today if SOPA was around. Too many “content” copies had beef with YouTube in the past.

Pro Se, I’m afraid we’ll have to disagree. Over 400 domains have been seized unlawfully by ICE. Piracy continues. Further, the USTR has found 19 sites that it says are “rogue websites”. Of those on the list, The Pirate Bay, IsoHunt, and Megaupload have been on this type of list for more than a year. The Pirate Bay has existed to thumb its nose at the industry for quite some time. Their site no longer holds infringing content due to how magnet links work. IsoHunt has gone through litigation and for the most part is neutered in the US. Megaupload is in a fight with Universal over a false DMCA takedown claim while it’s been called a legal site in US courts. People use these sites for legal purposes, especially Megaupload that is looking to compete against the record labels with a 90% artist, 10% MU split in revenue in the near future on their sites. So in essence, you now have a company that wants to help you and your daughter make more money but for the “rogue website” distinction that is not based in reality. These sites are not “rogue websites”, nor are they “pirates”, nor are they robbing you and making you walk the plank. They allow others to find content and help to sell you, the artist. Artists have made money by utilizing new technology and finding ways to profit. That’s a simple truth.

Another simple truth is that piracy comes as an outset of those that have inadequate access to legal channels. Once those problems are fixed, people buy. They use downloading to sample files mainly and find new content. Some use it to collect libraries. Still, the fact is that despite all of the legalities to take down Napster, Grokster, Kino.to, or any other platform, people will continue to pirate. The best one can do is make affordable licensing deals, promote like crazy, and find what actually sells in the economy.

I ment to say I doubt YouTube would exist today if SOPA was around [when it was still a startup and not owned by Google].

Regardless SOPA has the potential to really harm technology startups. Startups by their innovative nature bring disruptive technologies that challenge legal and cultural norms. But they don’t have the legal muscle to defend themselves that established technology companies do.

In addtion, if the DNS filtering is somehow successful, it could also lead to a fragmented Internet, with the “European Internet” and the “American Internet” being different. Startups might focus on Europe and forsake the US market. This could also cause harmful political rifts between these entities in the future.

It could also cause trade deficits between USA and the rest of the world. Because while USA by viture of SOPA might have less piracy (again this is conjecture), Americans would have to pay into “copyright system” much more than the rest of the world.

Some pretty interesting happening with MegaUpload. MegaUpload is suing Universal Records for a false DMCA claim on their MegaSong, which is a song that shows many popular music artists endorsing the service. MegaUpload claims that they own the copyright over this song.

UMG apparently doesn’t dispute this in their defense but claims they have a right to remove videos from YouTube for pretty much any reason they want. However, Google said publicly that this isn’t the case at all.

Probably –Universal has contracts with certain artists that appeared on the video.
In those contracts is probably an exclusive ownership of anything the artist creates during the contract period. period.
Plainly said, the artist with said contract, by terms of the contract- can’t write for another company/label/or pirate locker… during the contract period.

Plainly said, the artist with said contract, by terms of the contract- can’t write for another company/label/or pirate locker… during the contract period.

Universal does not own those copyrights on the songs created. It all goes to Megaupload. Period. That’s why Universal has some explaining to do and Youtube found this DMCA notice to be false.

About

Copyhype provides news and info on current developments relating to copyright law, the media industries, and the digital economy. It cuts through the hype to bring reasoned discussion aimed at both legal and nonlegal audiences.

Terry Hart is currently VP Legal Policy and Copyright Counsel at the Copyright Alliance. Any opinions expressed on this site remain his own and not necessarily those of his present or any past employers.